Criminal Justice in Scotland's Parliament

This part of the site is a weekly review of criminal justice business at Holyrood starting, in its present format, from September 2006. The page is supported by a grant awarded by the Clarke Foundation for Legal Education and is written by our Parliament correspondent, Katrina Morrison.

New: "Handy guide to criminal justice in the Scottish Parliament June 2007 - August 2008".

Glossary: 'Law Officers' = the Lord Advocate and the Solicitor-General for Scotland. 'SPICe' = Scottish Parliament Information Centre

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Parliamentary Report for the 3rd - 7th of November, 2008

This week the Justice Committee heard their second session of evidence as part of the scrutiny of the Sexual Offences (Scotland) Bill, all of which related to the parts of the Bill which affect young people and children. This theme continued in the Chamber, where there was a debate about the United Nation’s Convention of the Rights of the Child.

The Justice Committee

Scrutiny of the Sexual Offences (Scotland) Bill

The Committee met on Tuesday to hear their second day of evidence as part of the scrutiny into the Sexual Offences (Scotland) Bill from three panels of witnesses about the areas of the Bill relating to children and young people. The Bill would criminalise all sexual activity involving children under the age of 13, (even if all who were involved were children and claimed to have consented), and, even though consensual sex between older children would be criminalised, the law would routinely not be enforced, and when it was this would be at the Lord Advocate’s discretion. This is in order to not criminalise the significant minority of children under 16 who do engage in sex, whilst still sending out the message that it is not approved of.

The first panel consisted of representatives from the voluntary sector organisations Children First, Children in Scotland, and Barnardo’s Scotland. Many of the questions they were asked were developing points they had made in their written submissions (which you can read on the Bill’s Committee homepage). Firstly, and mirroring recommendations that were made by the witnesses last week, the witnesses said that the list of situations in which consent should be regarded as being absent (for example, if someone is incapacitated through alcohol), should be extended to include cases in which the victim has previously been the victim of physical or sexual abuse by the accused, and cases in which the victim agreed to or submitted to the act because he or she was subject to emotional or psychological abuse.

The witnesses also said that they welcomed the Bill’s proposals that children under the age of 13 cannot give proper consent to sexual relations, although they also said that this part of the Bill was inconsistent with the fact that children under this age would be prosecuted if they engaged in consensual sexual activity. They said that, if children this age were not able to give consent to sexual activity, they should not then be held responsible for engaging in non–coercive and non–exploitative sexual activity themselves, or at least that there should be discretion in prosecution decisions to avoid unnecessary criminalisation.

This raised the interesting point (also raised last week), of the merits or otherwise of having a law which is routinely not enforced (viz. the Lord Advocate’s guidelines which state that consensual sex between the ages of 13 –15 should generally not be prosecuted). The witnesses said that, although it was important to make sure the precise wording of the legislation was as tight as possible, there was also need for flexibility and discretion in the law, with one witness saying that, the accompanying guidance to professionals involved in the implementation of the law, was as important as the precise wording of the law in statute.

There were interesting discussions about the age of criminal responsibility in general and in particular about the part of the Bill that would prosecute children under 13 if they engaged in sexual activity. Paul Martin (Lab) raised the scenario of a 12 year old child who assaults a 2 year old, saying that in such a case criminal proceedings should surely be considered. There was slight disagreement from the witnesses on this issue: Children 1st said that even if the behaviour of a 12 is unacceptable, the behaviour must be considered as a care and protection issue, rather than a criminal justice one. Barnardo’s Scotland said that, although such cases would be very rare, the Bill should not be amended to remove the possibility of children under 13 being criminally responsible for sexual behaviour. Children in Scotland said that as a general principle they were against the criminalisation of young children, but it was up to the Committee to recommend whether a presumption of non–prosecution would be put aside in certain cases or not.

The witnesses were also asked about the parts of the Bill dealing with sexual activity of those between the ages of 13 and 15, especially in light of evidence that says that around 30% of Scottish youngsters first have sex before the age of 16. The witnesses said that the best of way of discouraging young people of having sex before they are ready is to provide them with information and access to sexual health services,rather than to criminalise sex. However, the witnesses were keen to emphasise that sex before 16 should not be encouraged or approved of, but that it was nonetheless important that if it was going to happen, it should not be compounded by the additional problems of spreading sexually transmitted infections or unwanted pregnancies.

The next panel was the Scottish Children’s Commissioner, Kathleen Marshall. She said that it was important that young people are involved in the formulation of law and policy in this area, but that this would need to be carried out in a sensitive way given the subject area. She said that this is required by article 12 of the United Nations Convention on the Rights of the Child which says that young people’s views need to be taken account of in the formulation of law which affects them, and that, as an absolute minimum, this should involve 13, 14 and 15 year olds. She said that although she was disappointed that children’s views have so far not been heard as part of the formulation of this Bill, it was still not too late to carry out such a consultation.

Regarding the issue of whether a child under the age of 13 should be prosecuted for sexual activity, she said she was unequivocally against this idea, even if the behaviour was extreme, involving violence for example. She said that it was crucial to differentiate between the ’moral responsibility’ of the child by knowing right from wrong, and the age of ‘criminal liability and the age of criminal prosecution’. Therefore, even if a 12 year old had committed a serious sexual offence and they knew that it was wrong, they should still not be criminalised because children should be regarded as a developing being who are redeemable, and such a case would raise serious issues about the life and experiences of the young person in question.

She was also asked about the proposals which would effectively decriminalise consenting sexual activity between 13 and 15 year olds, and she said that although this was to be cautiously welcomed, it was also necessary to ensure that this did not give the message that the age of consent was being lowered, and there should therefore be a simultaneous and high profile public health campaign to emphasis that 16 was still the legal age of consent, which would ensure that young people do not feel pressurised to engage in sexual activity before they are ready.

The final panel was comprised of professionals from the Scottish Children’s Reporter Administration, who were able to shed light on current practice involving young people who engage in sexual behaviour. The witnesses said that the majority of the cases should be considered along welfare, care and protection lines and sent to a children’s hearing, and that the Bill would not significantly alter the decision making process they currently make about the best way to deal with these cases. They said that the hearing system allows for individual assessment to be carried out for each case, which would also get around the problem of trying to write the legislation in statute to accommodate individual cases. They were also critical of the proposals in the Bill which would criminalise young people under the age of 13, saying that apart from anything else, this would raise significant practical problems, and they gave the example of whether a young female who is pregnant, saying that she could either be regarded as the victim of a serious offence or as having committed an offence herself. This would then create challenges for the agencies involved which would treat her differently depending on which category she fell into.

The Committee concluded their meeting in private by considering the evidence they had heard.

You can read all the evidence in the Official Report, or watch it on Holyrood.TV. You can also read more about the different aspects of the Bill on its homepage.

The Chamber

Debate on the United Nations Convention on the Rights of the Child

There was a debate on Thursday led by the Secretary for Education and Lifelong Learning, Fiona Hyslop, about children’s rights in Scotland. This follows the conclusion of the most recent reporting cycle of the UN Committee on the Rights of the Child, which is a five-yearly audit showing where states fall short in compliance with the convention. Although the focus is largely on the UK, the majority of the recommendations are directly relevant to Scotland. Amongst the areas of concern raised in the UN’s report relating to Scotland, were the low age of criminal responsibility and the practice of locking up 16 and 17 year olds in adult prisons. The Scottish Children’s Commissioner has also recommended that the UN Convention on the Rights of the Children should be incorporated into Scottish domestic law.

Opening up the speech, the Cabinet Secretary said that the Scottish Government would take positive action on the issues that have been raised, and she said that Scotland has a strong tradition of protecting, including and providing for children, and she said that the UN Convention of the Rights of the Child must be achieved as these are the ‘;international gold standard’. She said that the Government has made clear its commitment to the provisions of the convention, which are a driver for improvements to children’s rights across the world.

She said that work by the current and previous administrations have lead to a significant improvement of the way that asylum seekers and their families are treated within Scotland, saying that a Scottish ‘alternative to detention’ pilot is being developed which aims to be able to take the first families in early New Year. She also said that the Government remained committed to ending the remand of under–16s in prison. This point was picked up by George Foulkes (Lab), who reminded the Chamber in an intervention to Ms Hyslop’s speech, that the Justice Secretary had said in February that no more children would be held in prisons, yet, and as the Chief Inspector of Prisons highlighted in his latest annual report, six more have been incarcerated since then. Ms Hyslop said that the Justice Secretary’s announcements about ending remand for under–16s were recognised and praised by the UN Committee, and that the present Government are working to deal with measures introduced by the previous Administration such as unruly certificates for 14 and 15 year olds.

Cathie Craigie (Lab), who also sits on the Justice Committee, asked why children were not consulted as part of the formulation of the Sexual Offences Scotland Bill (see above). Ms Hyslop said that this was an important issue, and she awaited the committee’s response on it with interest. She praised the work carried out by the present Commissioner for Children and Young People, Kathleen Marshall, saying she had worked tirelessly to ensure that all children, particularly the most vulnerable, are listened to and represented.

One of the areas that the UN Committee was critical of the current Scottish practice, was the age of criminal responsibility (8). The Secretary said this issue was ‘philosophically complex’ for Scotland, and she said that the Government would reflect and carefully consider their response, although the fact that Scotland has a welfare based system of justice for young people would also be reflected in any changes that may be brought about through legislation.

Speaking for Labour, Karen Whitefield welcomed the UK Government’s recent moves to remove the two reservations on the convention relating to immigration and children in custody with adults, and she said that in light of the Committee’s comments about the very low age of criminal responsibility in Scotland, it was now time to have a wide ranging debate about the issue. She also pointed out that just because the present Government are consulting on the abolition of unruly certificates, this does not guarantee that no children will be kept in adult prisons any more. In response to an intervention from Ms Hyslop however, she did welcome the recent announcements that 17 and 18 year olds who have been in secure accommodation should remain there rather than being transferred, as they have been previously, to either young offenders institutions or adult prisons.

Elizabeth Smith (Con) said that it was the moral as well as the legislative obligation of any Parliament to ensure that children are protected, however, she questioned whether the State should legislate on all the issues cited in the report and whether there is either a political or moral obligation to adopt every recommendation. She said that the Conservative Party accepts most of the recommendations of the Committee’s report, but they nonetheless feel that the legal and libertarian implications should be subject of more extensive debate.

For the Liberal Democrats, Nicol Stephen said that a lot has been done on children’s rights and involvement in Scotland: there is now a Children’s Parliament, a Scottish Youth Parliament, a new Commissioner for Children and Young People and a Scottish Commission for Human Rights. However, he said the tenor of debate that came from the political parties was unhelpful, saying that young people are talked down and portrayed as the problem, with Labour calling for ASBOs against 10 year olds, and the SNP pushing to ban alcohol for those aged between 18 and 21. He also said that the UN Convention on the Rights of the Child should be incorporated into Scots law, and that children should be involved in decision making at all levels and in meaningful ways.

The speeches which followed touched on health, justice and education, with many members keen to put their views on record. There were more calls to incorporate the Convention into Scots Law, and there were also calls to end the discrimination faced by the children in Gypsy Traveller communities. There were further criticisms of the practice of holding children in Dungavel and other immigration institutions, and the point that children’s voices ought to be heard in the policy making process, was also reiterated.

You can read the full transcripts of the debate in the Official Record, or watch it on Holyrood.TV

See also

“UN Committee on Rights of the Child reports on UK: implications for Scottish child justice” CJScotland 6.10.08

Written questions

There were written questions this week about how much the Government spent on alcohol test purchasing schemes, and about awareness raising of the laws relating to underage alcohol purchasing. There were further questions about alcohol, which showed that a total of 329 pupils were suspended from school for alcohol misuse in 2006-7, and about what sanctions are available against licenses who sell alcohol to customers who are already drunk. There were more questions about the final implementation of the Licensing (Scotland) Act 2005, including what guidance has been given to police officers about this legislation http://www.scottish.parliament.uk/business/pqa/wa-08/wa1106.htm#17. There was a question about collecting anonymous data on knife crime, some questions about private security firms, and a question about what the Government is doing to include more women and ethnic minorities in judicial appointments. There were a number of questions about knife crime, and about whether the Government would consider holding a cold case review into a death ten years ago. There was a question about a possible single non emergency telephone number for the police, and about police force revenue ad expenditure. There was a question about what is being done to reduce the number of women in prison, and about the site of a new prison to replace HM Prison Greenock. 

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